JOHN ASHCROFT, Attorney General of
the United States; JOHN HURLEY,
Warden, U.S. Penitentiary, Administrative
Maximum Security, Florence, Colorado,

Respondents-Appellees.

(D.C. No. 98-D-698)

ORDER ON PETITION FOR REHEARING

Before EBEL and LUCERO, Circuit Judges, and
VRATIL,*(*) District
Judge.

On June 4, 2001, in a published opinion, this panel held that Boyce's
petition for a writ of habeas corpus sought relief which was not cognizable under
28 U.S.C. § 2241, and that the district court had not erred in dismissing that
petition. This matter comes before the court on Boyce's petition for rehearing
filed June 20, 2001. Boyce states that the Bureau of Prisons transferred him from
ADX Florence, Colorado to FCI Sheridan, Oregon on May 31, 2001. He points
out that the transfer is precisely the relief which his petition requested, and he
contends that the published opinion is therefore moot. Petitioner asks the court
to vacate and "depublish" the opinion and allow him to voluntarily dismiss his
appeal nunc pro tunc as of the date of his transfer, May 31, 2001.

The government asserts that the panel opinion rested upon a finding that
the district court lacked jurisdiction under 28 U.S.C. § 2241, and not a holding
that Boyce had failed to state an actionable claim under that statute. If this
position is correct, we need not address the question of mootness because the
court has discretion to first reach the jurisdictional issue. SeeRuhrgas AG v.
Marathon Oil Co., 526 U.S. 574 (1999) (court may decide personal jurisdiction
before subject matter jurisdiction); seealsoSteel Co. v. Citizens for a
Better
Env't, 523 U.S. 83 (1998) (court must address issues of jurisdiction before
reaching merits). Although the court may have discretion to decide subject
matter jurisdiction before reaching the issue of mootness, however, we find no
reason to do so in this case. The matter is unquestionably moot. The court
therefore vacates its judgment and remands to the district court with directions to
vacate its judgment as moot. SeeGreat W. Sugar Co. v. Nelson, 442 U.S. 92,
99
(1979) (per curiam) ("[w]here it appears upon appeal that the controversy has
become entirely moot, it is the duty of the appellate court to set aside the decree
below and to remand the cause with directions to dismiss.").

Regarding Boyce's request to "depublish," we are not sure what such a
request means in practical effect. SeeMartinez v. Winner, 800 F.2d 230, 231
(10th Cir. 1986) (denying request to vacate published opinions, noting that "the
opinions may be useful to someone in the future simply as a description of the
course of this case"). Our decision to vacate the judgment and direct the district
court to vacate its judgment removes the preclusive effect (if any) of the vacated
judgments. Seeid.

The judgment of this court affirming the district court's dismissal of
Boyce's petition for writ of habeas corpus is hereby vacated. The district court is
ordered to vacate its judgment and dismiss the case as moot.

Entered for the Court

PATRICK FISHER, Clerk of Court

By:

Deputy Clerk

FOOTNOTESClick footnote number to return to corresponding location in the text.

*.The Honorable Kathryn H. Vratil, United
States District Judge for the District of
Kansas, sitting by designation.